IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DERRICK D. DUNLEVY,

Plaintiff,

vs. Civil Action 2:11-CV-863

Judge Watson

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner

of Social Security denying plaintiff’s application for disabled

adult child’s insurance benefits. This matter is now before the

Court on plaintiff’s Statement of Errors, Doc. No. 12, the

Commissioner’s Memorandum in Opposition, Doc. No. 18 and

plaintiff’s Reply, Doc. No. 21.

Plaintiff was awarded child’s Supplemental Security

Income [“SSI”], beginning at age 7, in connection with his

attention deficit disorder, attention deficit hyperactivity

disorder and oppositional/defiant disorder. PageID 179. After the

death of his father in 2005, plaintiff received survivor’s child’s

insurance benefits from December 2005 to June 2008. PageID 173. In

June 2007, plaintiff’s SSI payments were suspended because of the

excess income attributable to his receipt of child’s insurance

benefits. See 20 C.F.R. § 416.1335. PageID 170-75. When plaintiff

reached the age of 18 in June 2008, he no longer qualified for

child’s insurance benefits. See 20 C.F.R. §404.352(b)(3); see also

PageID 173.

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Acting through his mother, plaintiff filed his

application for child’s insurance benefits in April 2010, claiming

benefits as a disabled adult child under his father’s Social

Security account. PageID 223-25. Plaintiff alleges that he is

disabled as a result of attention deficit hyperactivity disorder

(“ADHD”), bipolar disorder, depression, schizophrenia and

personality disorder. PageID 198. The application was denied

initially and upon reconsideration and plaintiff requested a de

novo hearing before an administrative law judge.

An administrative hearing was held on December 19, 2009,

at which plaintiff, represented by a non-attorney representative,

appeared and testified, as did his mother and Casey B. Vass, who

testified as a vocational expert. In a decision dated February 26,

2010, the administrative law judge found that plaintiff has the

residual functional capacity for a reduced range of light work that

permits the performance of work that exists in significant numbers

in the national economy and that plaintiff is therefore not

disabled within the meaning of the Social Security Act. PageID 69-

80. That decision became the final decision of the Commissioner of

Social Security when the Appeals Council declined review on July

25, 2011. PageID 59-62.

II.

Testimony

Plaintiff was 19 years of age when the administrative law

judge issued his decision and 7 years of age on the alleged

disability onset date. Plaintiff is a high school graduate,

although his school records indicate that he received special

education services “as a student with an Emotional Disturbance.”

PageID 226.

Plaintiff testified at the administrative hearing that he

lives at home with his mother and his twin sisters. PageID 92. He

does not have a driver’s license and does not drive. PageID 92-93. 

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He cannot read a newspaper. PageID 106. He has never worked. Id. 

Plaintiff has anger issues: “I act out and break stuff

and I argue and fight with my mom and my grandma and I end up like

breaking stuff in my house sometimes and fight with my sisters. I

can’t get along.” PageID 95. He was once arrested for kicking a

teacher and was placed in a detention center for one year.1 PageID

109. He was frustrated by his inability to complete school

assignments and by the fact that other students made fun of him. 

PageID 109-10. He has punched holes in the walls and has broken a

door and knickknacks. Id. His mother has called the police,

although not within recent years. PageID 95-96. Plaintiff also

experiences panic attacks two to three times a month. PageID 96.

His mood swings are frequent. PageID 97. He prefers to be by

himself. PageID 96. His medications help “a little bit.” PageID

108.

Plaintiff can care for his personal needs. PageID 98. He

does not sleep well at night. Id. He naps throughout the day.

PageID 103-04. On a typical day, plaintiff watches television and

stays in his room. PageID 99. He helps his mother pick up around

the house. Id. Although plaintiff testified that he does not “go

out of the house,” PageID 99, he also testified that he went deer

hunting the prior hunting season, id., and went fishing about 30

days during the prior fishing season. PageID 105. He gets long

“really well” with his grandfather and enjoys spending time with

him. PageID 100. He has no friends. PageID 101.

He once tried to get a job, but was unsuccessful because

he does not like to be around people. PageID 101. 

Plaintiff’s mother, Melinda Lou Dunlevy, also testified

at the administrative hearing. PageID 113-23. According to Ms.

Dunlevy, plaintiff spends his days sitting in his room listening to

1

Plaintiff’s mother testified that plaintiff was detained for three (3)

months. PageID 118.

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the radio. PageID 113. He does not interact with others, even at

family gatherings. PageID 115. When her son “throws his fits,” he

destroys everything. PageID 114. His anger is easily triggered. 

Id. She does not believe that plaintiff can control his anger. 

PageID 116. She does not believe that his medications help. PageID

116.

Casey B. Vass, the vocational expert, was asked to assume

a claimant with plaintiff’s vocational profile and the residual

functional capacity for light exertion limited to repetitive tasks

not involving public contact or pressure to perform rapidly and

without strict production deadlines and only limited social

interaction. PageID 124. In response, the vocational expert

testified that such a claimant could perform more than 500,000

light jobs in the national economy, including such jobs as laundry

worker, hand packer and cleaner. PageID 124-25.

III.

The Medical Evidence of Record2

In June 2002, when plaintiff was 11 years old, he

presented to the Cleveland Clinic emergency room with his mother

for apparent suicidal ideation and visual and auditory

hallucinations. PageID 258-64. He was “visibly quite angry.” PageID

258. He was admitted for observation. PageID 259, 700-67. A

history of psychiatric treatment was noted, including a

prescription for Ritalin, since the age of 3. PageID 708.

2

The record contains additional medical evidence including more records

from the 2002 Cleveland Clinic admission and treatment records from the

Worthington Center covering a period after the administrative law judge issued

his decision, including an August 2010 opinion from Dr. Matisi. PageID 700-

99, and a letter from plaintiff’s mother. PageID 800-12. That evidence was not

before the administrative law judge but was submitted to the Appeals Council.

However, that evidence is not a part of the record for purposes of substantial

evidence review of the administrative law judge’s decision. See Cline v.

Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996).

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Plaintiff received mental health treatment from TriCounty Mental Health and Counseling Services from January 2003 to

May 2008. PageID 320-62, 368-401, 434-96. Plaintiff’s diagnoses

included conduct disorder, bi-polar disorder, cyclothymia and

oppositional defiant disorder. Persistent problems at home and at

school were reported. See, e.g., PageID 340, 377, 388. He was

placed in an alternative school. See PageID 516-28, 548-670, 673-

99.

Since 2005, Plaintiff has treated with psychiatrist

Catherine Matisi, D.O., who diagnosed bipolar affective disorder I

mixed. PageID 529-31. A May 2007 mental status examination showed

average eye contact, mild agitation, no delusions or

hallucinations, and no aggressive behavior. PageID 529. Plaintiff’s

mood was depressed, anxious, angry and irritable. His affect was

labile. PageID 530. 

In October 2007, when plaintiff was 17 years old, he was

hospitalized at the Ohio Hospital for Psychiatry for eight days

following reports of suicidal ideation. PageID 267-315. At the

initial assessment, plaintiff’s memory was intact, he was oriented

and had adequate intellectual functioning. His affect was

appropriate, his mood was anxious and irritable and his judgment

was poor. His thought process was coherent and content was normal.

Visual and auditory hallucinations were reported. Plaintiff voiced

numerous somatic complaints. Upon discharge, plaintiff was no

longer voicing suicidal or homicidal ideation. Plaintiff was

discharged with diagnoses of bipolar disorder, NOS, history of ADHD

and intermittent explosive disorder. PageID 268. He was assigned a

Global Assessment of Functioning (“GAF”) of 60. Plaintiff’s

medication was adjusted and outpatient treatment was recommended. 

Id.

In July 2008, Dr. Matisi completed a daily activities

questionnaire in which she reported that plaintiff’s mother makes

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few demands on him. PageID 363-64. Plaintiff had few friends and

did little outside the home; he spent his days watching television,

playing video games and listening to music. Id. Dr. Matisi also

completed a mental status questionnaire. PageID 365-67. Dr. Matisi

found no gross evidence of a thought disorder but evidence of mild

paranoia. According to Dr. Matisi, plaintiff’s history of poor

compliance with treatment and limited commitment to improvement,

combined with his psychological impairments and the fact that his

mother imposed few demands at home, “have created poor tolerance

for stress or other demands to conform behavior.” PageID 366.

In November 2008, after he reached the age of 18,

plaintiff’s treatment with Dr. Matisi was transferred to a

different clinic, the Worthington Center. PageID 508-12. Dr.

Matisi noted that plaintiff had problems with attention,

concentration, focus, irritability, anger, lability and

impulsivity. PageID 446. Progress notes from July to December 2009

indicated good progress with mood and focus. PageID 497-507.

In a December 2009 assessment of plaintiff’s mental

functioning, Dr. Matisi reported that plaintiff had “poor” or “no”

ability in the following work related areas: following work rules,

relating to coworkers, dealing with the public, using judgment,

interacting with supervisors, dealing with work stresses,

functioning independently, or maintaining attention and

concentration. According to Dr. Matisi, plaintiff’s abilities to

relate predictably in social situations and to maintain personal

appearance were “fair,” but plaintiff had no useful ability to

behave in an emotionally stable manner. Dr. Matisi concluded that

plaintiff is “unemployable.” PageID 430-32.

In August 2008, Gary S. Sarver, Ph.D., performed a

consultative psychological evaluation, which included testing and

a diagnostic interview, at the request of the state agency. PageID

402-09. Dr. Sarver noted that plaintiff’s independent living skills

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appeared to be fair, although he depended on his mother to take

care of him. PageID 402. Plaintiff reported recent weight loss,

diminished energy, depression, and anger. Dr. Sarver characterized

plaintiff as pleasant, cooperative, interactive, and responsive to

the demands of the test situation. PageID 403-04. On testing,

plaintiff achieved a verbal IQ score of 79, a performance IQ score

of 77, and a full scale IQ score of 76, PageID 406, results that

were “considerably below” the results of testing in 2002. Dr.

Sarver attributed that discrepancy to the use of two different

testing protocols (WISC-3 versus WAIS-III) and felt that the

current results were “an accurate reflection of how he is currently

functioning.” PageID 406. Dr. Sarver reported that plaintiff’s

abstract reasoning, common sense and judgment were within the

borderline range. Plaintiff's insight was poor with little

understanding of his intrapsychic dynamics or the emotional

complexities of interpersonal relationships. PageID 405. Dr.

Sarver reported that plaintiff’s attention, concentration, and

persistence were appropriate. PageID 404. Dr. Sarver noted that

plaintiff had no behavioral manifestation of the non-dominant

parietal lobe attention deficits associated with ADHD. PageID 407.

Dr. Sarver diagnosed an adjustment disorder, with depression and

anxiety, and a personality disorder. Id. Plaintiff was assigned a

GAF score of 51. Id. According to Dr. Sarver, plaintiff could

understand and follow simple one- and two-step job instructions and

could perform simple, repetitive tasks. Plaintiff was moderately

limited in his ability to relate to others and to manage work

stresses. PageID 408. Plaintiff would likely have difficulty

organizing, structuring and working towards goals and would likely

have difficulty containing his anger, managing his frustration and

controlling his impulses. He would likely depend on other people

and/or situations to structure life for him. Id.

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State agency psychologist Bruce Goldsmith, Ph.D.,

reviewed the file in September 2008. PageID 410-27. According to

Dr. Goldsmith, plaintiff was moderately limited in his ability to

understand, remember and carry out detailed instructions, to work

in coordination with or proximity to others without being

distracted by them, to complete a normal workday and workweek

without interruptions from psychologically based symptoms, to

perform at a consistent pace without an unreasonable number and

length of rest periods, to interact appropriately with the general

public, to accept instructions and respond appropriately to

criticism from supervisors, to get along with coworkers or peers

without distracting them or exhibiting behavioral extremes, to

respond appropriately to changes in the work setting and to set

realistic goals or make plans independently of others. PageID

424-25. Based on plaintiff’s clinical interview and Dr. Sarver’s

findings, Dr. Goldsmith concluded plaintiff retained the ability to

understand, recall and follow simple instructions in a workplace 

that did not present pressure to perform rapidly or require lot of

social interaction or strict production deadlines. PageID 426. Dr.

Goldsmith also completed a “Psychiatric Review Technique” form on

which he opined that plaintiff had moderate restrictions in

activities of daily living, in maintaining social functioning and

in maintaining concentration, persistence, or pace. PageID 420. In

January 2009, state agency physician David Demuth, M.D., affirmed

Dr. Goldsmith’s assessment. PageID 428-29.

IV.

EDUCATIONAL RECORDS

In January 2003, plaintiff withdrew from Brunswick City

Schools and transferred to the Athens City Schools, where he was

assigned to classes for students with a severe behavioral handicap

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[“SBH”]. PageID 382. Plaintiff remained in an alternative school

for SBH students until his graduation in 2008. PageID 791. In

2006, plaintiff was suspended from school on a number of occasions.

He was also expelled from school, charged with unruliness and

placed on probation. See PageID 340, 349, 350, 354, 399. The

following fall, plaintiff was again suspended, and continued on

probation to compel him to behave and to take his medications as

prescribed. PageID 386. 

V.

Administrative Decision

In his decision, the administrative law judge found that

plaintiff had not attained age 22 as of August 1, 1997, his alleged

disability onset date.3 PageID 71. The administrative law judge

characterized plaintiff’s severe impairments as borderline

intellectual functioning, affective disorder, intermittent

explosive disorder and obesity. Id. The administrative law judge

also determined that plaintiff does not have an impairment or

combination of impairments that meets or medically equals a listed

impairment. Specifically, the administrative law judge determined

that plaintiff’s mental impairments neither met nor medically

equaled the “B” criteria of Listings 12.04, 12.05 and 12.08. PageID

72. The administrative law judge also found that the record failed

to document that the “C” criteria of Listing 12.04 had been met.

PageID 72-73.

The administrative law judge found that, from a mental

standpoint,4 plaintiff has the residual functional capacity to

3

For purposes of child's insurance benefits on the basis of a

disability, a claimant over 18 years of age must establish that he became

disabled prior to the age of 22. 20 C.F.R. § 404.350(a)(5).

4

Plaintiff does not challenge the administrative law judge’s finding

that plaintiff has the exertional residual functional capacity for light work.

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perform routine repetitive tasks that require no public contact or 

pressure to perform rapidly and which involves only limited social

interaction and no strict production deadlines. PageID 74. The

administrative law judge based this finding on the reports of the

consultative examiner, Dr. Sarver, and the reviewing psychologist,

Dr. Goldsmith, to whose opinions the administrative law judge

accorded “great weight” because they are consistent with and well

supported by the record as a whole. PageID 78. The administrative

law judge gave “no weigh[t]” to the opinion of plaintiff’s treating

psychiatrist, Dr. Matisi, “because it is inconsistent with the

record from Worthington Center, as well as the record as a whole.” 

PageID 79. 

Relying on the vocational expert’s testimony, the

administrative law judge found that plaintiff is capable of

performing a significant number of jobs in the national economy.

PageID 79. Accordingly, the administrative law judge concluded

that plaintiff is not disabled within the meaning of the Social

Act. PageID 80. 

IV.

Discussion

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Substantial evidence is

more than a scintilla of evidence but less than a preponderance; it

is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. See Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001); Kirk v. Secretary of Health & Human

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try

the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. See Brainard v. Secretary of Health &

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Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler,

745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence,

this Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d

1058, 1059 (6th Cir. 1983), and even if substantial evidence also

supports the opposite conclusion. Longworth v. Comm’r Soc. Sec.,

402 F.3d 591, 595 (6th Cir. 2005).

In his Statement of Errors, plaintiff contends, first,

that the administrative law judge improperly ignored the earlier

finding of disability made in connection with plaintiff’s award of

SSI benefits. As the Commissioner notes in the Memorandum in

Opposition, however, the standards governing the award of child’s

SSI benefits and the standards governing the award of child’s

insurance benefits are different. Compare 20 C.F.R. § 416.924 with

20 C.F.R. § 416.987. The fact that plaintiff was awarded child’s

SSI benefits is simply not determinative of his application for

child’s insurance benefits. Moreover, and contrary to plaintiff’s

characterization of the record, the administrative law judge did

not ignore evidence of plaintiff’s mental impairments prior to

reaching the age of 18. See, e.g., PageID 76 (“The record begins

in October 2002 . . .”). Plaintiff’s objection in this regard is

without merit.

Plaintiff also argues that the administrative law judge

mischaracterized and ignored material evidence of plaintiff’s

disability. Specifically, plaintiff contends that, given the

totality of the record, the administrative law judge made findings

of fact unsupported by substantial evidence in the record. Although

the Commissioner of Social Security must consider the record as a

whole and provide a statement of evidence and the reasons on which

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the decision is based, see 42 U.S.C. § 405(b)(1), the

administrative law judge need not explicitly address every piece of

evidence in the record. Kornecky v. Commissioner of Social

Security, 167 Fed. Appx. 496, 507-08 (6th Cir. 2006)(“An ALJ can

consider all the evidence without directly addressing in his

written decision every piece of evidence submitted by a

party”)(internal quotation marks omitted); Heston v. Commissioner

of Social Security, 245 F.3d 528, 534-35 (6th Cir. 2001). The

administrative decision in this case adequately demonstrates that

the administrative law judge considered the entire record. The

fact that plaintiff disagrees with the Commissioner’s evaluation of

the evidence does not alone constitute grounds for rejecting that

evaluation.

Plaintiff contends that the administrative law judge

erred by rejecting the opinions of the plaintiff’s treating

psychiatrist, Dr. Matisi, without good reason. The opinion of a

treating provider must be given controlling weight if that opinion

is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques” and is “not inconsistent with the other

substantial evidence in [the] case record.” 20 C.F.R. §

416.927(d)(2). Even if the opinion of a treating provider is not

entitled to controlling weight, an administrative law judge is

nevertheless required to determine how much weight the opinion is

entitled to by considering such factors as the length, nature and

extent of the treatment relationship, the frequency of examination,

the medical specialty of the treating physician, the extent to

which the opinion is supported by the evidence, and the consistency

of the opinion with the record as a whole. 20 C.F.R. §

416.927(d)(2)-(6); Blakley v. Commissioner of Social Security, 581

F.3d 399, 406 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d

541, 544 (6th Cir. 2004). Moreover, an administrative law judge must

provide “good reasons” for discounting the opinion of a treating

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provider, i.e., reasons that are “sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator gave

to the treating source’s medical opinion and the reasons for that

weight.” Rogers v. Commissioner of Social Sec., 486 F.3d 234, 242

(6th Cir. 2007), citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at

*5. 

As noted supra, the administrative law judge accorded no

weight to Dr. Matisi’s opinion of disability, simply characterizing

that opinion as “inconsistent with the record from Worthington

Center, as well as the record as a whole.” PageID 79. This

statement simply does not provide “good reasons” for discounting

Dr. Matisi’s opinion, nor does it provide reasons “sufficiently

specific to make clear to any subsequent reviewers” the reasons for

according “no weigh[t]” to that opinion. Rogers, 486 F.3d at 242. 

The Court therefore concludes that the matter must be remanded for

further consideration of Dr. Matisi’s opinion of disability.5

V. CONCLUSION

It is therefore RECOMMENDED that the decision of the

Commissioner be reversed and that the action be remanded for

further consideration of the opinions of plaintiff’s treating

psychiatrist.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the

5

In his Reply, plaintiff also urges remand, under Sentence 6 of 42

U.S.C. § 405(g) for consideration of new and material evidence. Reply, p. 9

n.6. On remand, plaintiff remains free to address any new and material

evidence before the Commissioner.

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basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.

72(b). Response to objections must be filed within fourteen (14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver of

the right to de novo review by the District Judge and of the right

to appeal the decision of the District Court adopting the Report

and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith

v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370

(6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).

Date: July 30, 2012 s/Norah McCann King

Norah McCann King

United States Magistrate Judge

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